The 10th Amendment to the federal Constitution, the last of the Bill of Rights amendments, declares that powers not delegated to the United States "are reserved to the States respectively, or to the people." Perhaps in your high school civics class you puzzled over which powers and/or rights the Framers had in mind here, your teacher noting that the 10th Amendment comes up so infrequently in Supreme Court cases since 1791.
Is it surprising, then, to learn that Abraham Lincoln, before the Civil War, felt Congress could not act to ban slavery in the South because of the 10th Amendment? Lincoln, according to historian Howard Zinn (A People's History of the United States), introduced a bill in the House of Representatives in 1849 to ban slavery in the District of Columbia only--D.C. being clearly under Congress's control.
Or take the 2nd Amendment, which says a "well-regulated Militia" is needed to protect each state, and therefore "the right of the people to keep and bear arms shall not be infringed." Zinn argues that this language is not about (or only about) yeoman farmers ready to fight the British--or a tyrannical federal regime. It's also about slavery: White folks in the South, he notes, lived in constant fear that their slaves would rise up against them.
Black History Month is February. But black history isn't just about blacks, or the African-American experience, even. It's about the quintessential American experience.
As John Hope Franklin, Duke's professor emeritus, wrote in a 1992 essay, throughout American history "the specter of color ... is all too often the unseen force that influences public policy as well as private relationships." Color was the reason the Framers refused to write a constitution that secured human freedom first and foremost, or indeed (even after the Bill of Rights was added), secure it at all, Franklin argues. And in the late 20th century, Franklin says, color is the reason the Republicans, as epitomized by the late Strom Thurmond and Jesse Helms, have so easily eviscerated New Deal notions of a more equal society, exploiting "an intensity of feeling against government's providing access for all Americans to the nation's resources and opportunities."
Arguments of this sort--that America is warped by its history of mistreating blacks--run counter to the "celebratory" history that most of us were, and are, taught in school. That history describes the national experience as one of continuing greatness (albeit with a few "needs-improvement" episodes) toward our golden status today as the world's lone Superpower.
This is American history as told, for example, by Lynne Cheney, Vice President Cheney's wife and the chair, during the Reagan-Bush I years, of the National Endowment for the Humanities. "We have created one [nation] from many," Ms. Cheney wrote in 1995 (Telling the Truth: Why Our Culture and Our Country Have Stopped Making Sense--And What to Do About It), "and should celebrate the spirit that has enabled us to do so."
One of Ms. Cheney's favorite anecdotes involves unnamed critics who attacked a Florida school district for requiring that its history courses teach "an appreciation of our American heritage and culture such as our republican form of government, capitalism, a free enterprise system, patriotism, strong family values, freedom of religion and other basic values that are superior to other foreign or historic cultures."
That this requirement generated controversy was, to Cheney, clear evidence of why our country had "stopped making sense" during the Clinton presidency, a problem the Bush-Cheney Administration has presumably ameliorated.
Take out the words "appreciation" and "superior" from the Florida policy, however, and critics like Franklin and Zinn probably wouldn't disagree with it: American history, properly taught, is absolutely about the primacy of capitalism, buttressed by regular appeals to patriotic fervor (the Mexican War, the Spanish-American War, the Cold War, the Iraq wars, just to name a few). It's also about a "republican" government rather than democracy, and property rights rather than social justice or individual rights.
The fact that slavery (and the mistreatment of blacks and other minorities throughout our history) is a major reason why all this is so ought to be the stuff of Black History Month in our schools. Franklin, for example, would have us consider "the profound impact that several centuries of preoccupation with undervaluing an entire race of people could have on the moral fiber of a nation, and on the national psyche."
Instead, February is about celebratory "black" chapters that fit within the celebratory white history that Cheney recommends: Harriett Tubman, Jackie Robinson and, of course, Martin Luther King Jr. Great, triumphant stories, but they serve to separate the strands of our history, not integrate them; nor do they help students consider whether our "black and white" history, taken as a whole, might explain why the United States, among the industrialized nations, is the one with the greatest concentration of wealth in the hands of the few, or why it is the only country that does not provide a basic benefit like health insurance to all citizens.
For windows into questions like these, some lesser-known Supreme Court cases are eye-opening: Prigg v. Pennsylvania, a pre-Civil War decision; the post-Civil War decisions collectively known as The Civil Rights Cases; and modern cases such as San Antonio Independent School District v. Rodriguez.
Property is national
That the original Constitution focused on property rights and not individual rights is beyond argument. Congress, in Article I, is empowered to regulate commerce with foreign nations and among the states, and to protect the "privileges and immunities" of all citizens, which were understood to include the right to own property and do business across state lines. Just so there was no misunderstanding, when the Bill of Rights was added, the Fifth Amendment assured that citizens could not be deprived of life, liberty or property without due process of law, "nor shall private property be taken for public use without just compensation."
Meanwhile, the First Amendment specifically prohibited the federal government from legislating ("Congress shall make no law. ...") about speech, religion, the press, or other political rights, for the simple reason that--when the Constitution was drafted--these were matters controlled completely by the states.
Thus, property rights were national. Political rights were not, and the states were free to grant them to some folks and not to others as they chose.
One "property" right guaranteed to every American by the federal Constitution was slave ownership. Article IV, Section 2, made clear that if a slave (or, as the document put it, "Person Held to Service or Labour") escaped to a "free" state, he or she was to be "delivered up on Claim of the Party to whom such Service or Labour may be due."
When some states in the North nonetheless passed laws early in the 18th century that tried to make slavecatchers adhere to a due-process standard, the Supreme Court cracked down hard. The case of Prigg v. Pennsylvania (1842) makes instructive reading for Black History Month. Pennsylvania wanted Edward Prigg, a slave catcher, to prove to a local magistrate that the person he'd grabbed was, in fact, a slave. The Supreme Court said Pennsylvania's law to that effect was unconstitutional because this property right was exclusively national under Article IV, Section 2, and state rules on the subject weren't allowed.
No wonder the abolitionist William Lloyd Garrison, irate when a federal judge in Boston ordered an escaped slave returned to Virginia, burned his copy of the Constitution in public protest, calling it "a covenant of death, an agreement with hell."
Students usually study Fletcher v. Peck, an 1810 case in which the Supreme Court ruled that the state of Georgia could not unilaterally abrogate a contract--a land grant--even though the legislature that voted it was corrupt. States squirmed in the early years when told that only the federal government was in charge of property rights. The laws about slavery helped cement that idea in place for them, especially in the South.
The civil rights cases:
Individual rights are not national
After the Civil War, Congress enacted the 13th, 14th and 15th Amendments, abolishing slavery, creating national citizenship and extending voting rights to ex-slaves. All three amendments included language giving Congress the power to enforce them "by appropriate legislation," and it did so, passing the Civil Rights Acts of 1866 and 1875.
As Reconstruction era historians like Eric Foner (Who Owns History?) point out, the Supreme Court soon acted to limit the reach of these enactments, however. In 1873, in a decision involving contracts at some New Orleans slaughterhouses (The Slaughterhouse Cases), the Court ruled that the 14th Amendment's language prohibiting the states from abridging "the privileges and immunities of citizens of the United States" meant only that blacks, like whites, enjoyed property rights, too. Their political rights, if any, were still up to the states, the Court ruled.
Then, in 1883, in The Civil Rights Cases, the Court struck down the Civil Rights Act of 1875 as unconstitutional. The Act guaranteed that blacks would have equal access to public accommodations--hotels, businesses and so on--even if they were privately owned. The Court said the 14th Amendment clause requiring states to accord all persons "the equal protection of the laws" meant only that the state governments themselves could not discriminate--they weren't required to keep whites from doing so.
Thus, the federal government was out of the business of protecting blacks against the depredations of the KKK; before long, Plessy v. Ferguson (1896) let the states provide "separate but equal" public facilities, after which the federal government turned a blind eye to Jim Crow laws for the next half-century.
Ironically, however, the same Supreme Court in 1886, in Santa Clara County v. Southern Pacific Railroad Co. , declared that corporations were "persons" within the meaning of the 14th Amendment. There followed a string of cases in which the Court struck down state laws governing labor practices, working conditions and other economic regulations because the 14th Amendment said the states could not "deprive any person of life, liberty or property without due process of law."
A court majority, according to constitutional scholars, began to define "liberty" as economic liberty, which was given the status of an almost absolute freedom against any and all state interference.
The rise of corporate power in America thus began--a body of law under which a Ken Lay cannot easily be held criminally responsible for crimes of the Enron Corporation even as he was able to spend freely from corporate coffers for political "speech."
Why? In his book Reunion and Reaction, the Southern historian C. Vann Woodward attributed the misuse of the 14th Amendment to an economic depression that swept the country after the Civil War, along with the radical impulses hard times engendered among Western settlers and the newly freed Southern slaves, who were eager to grab some of the nation's wealth from the bankers, industrialists and plantation owners who controlled it--and them.
The economic crisis, Woodward wrote, led directly to the deal that settled the 1876 presidential election. Republican Rutherford B. Hayes was awarded all of the 15 disputed electoral votes in three Southern states--enough to let him win in the Electoral College by one vote--and in return the GOP Congress agreed to end Reconstruction in the South, leaving freed slaves to the mercies of their former owners.
Northern financiers wanted to invest in the South, Woodward said. They didn't want their property taken away by poor whites and blacks newly armed with the vote.
Said W.E.B. DuBois of this period in his 1935 book Black Reconstruction: "God wept... For there began to rise in 1876 a new capitalism and the enslavement of labor."
Still unequal protection
American history since 1900 has been consumed with questions of social justice--for blacks, of course, as well as other minorities, women and the poor. The Civil Rights movement pushed hard on the streets and in the courts against discrimination by wealthy white men. In halting steps forward, the nation began to define "liberty"--under the 14th Amendment--as antithetical to segregated water fountains and public schools.
Segregation persists in many forms, however, as does unequal protection of the laws. Take the case of San Antonio Independent School District v. Rodriquez (1973). Mexican-Americans in a poor Texas town sued because their schools got so much less tax money than those in wealthier towns. The Supreme Court, however, ruled that equal educational opportunity is not a "fundamental right" in America since the poor kids suffered no "absolute deprivation of the desired benefit."
Dissenting, Justice Thurgood Marshall, the first black ever on the Supreme Court, complained that his colleagues were still quick to protect business interests against "discriminatory" legislation that might cost them a buck, while ducking cases that involve "oppression and discrimination against discrete, powerless minorities."
And lately, Foner writes, the nation has taken to using the 14th Amendment to protect white plaintiffs against "reverse discrimination" while rejecting various attempts to help blacks and the poor catch up. For instance: Until 1992, every North Carolina congressman in the 20th century was white. Nonetheless, the U.S. Supreme Court struck down a '90s redistricting plan that helped two African Americans, Eva Clayton and Mel Watt, win two of the state's 13 Congressional districts because the plan discriminated against white folks. What a country!